The Eighth Circuit Court of Appeals brought a Telephone Consumer Protection Act (TCPA) class action against presidential candidate Mike Huckabee and a group of marketing companies back to life, by ruling that even though the plaintiffs did not hear the prerecorded message, they could still bring suit.
In September 2012, Ron and Dorit Golan received two prerecorded messages on their home phone line. Each message stated: "Liberty. This is a public survey call. We may call back later." The Golans filed suit against a film company, its marketing companies, and various individuals, as well as Huckabee, alleging violations of the TCPA and Missouri's Do Not Call law.
The calls themselves came about as a result of a film titled Last Ounce of Courage. To promote the movie, numerous companies and individual investors hired Mike Huckabee, who taped a script that was transmitted to 4 million residential phone lines.
If a call was answered, the script began: "Hello, this is Governor Mike Huckabee, with a 45-second survey. Do you believe in American freedom and liberty? … Would you, like me, Mike Huckabee, like to see Hollywood respect and promote traditional American values? I am an enthusiastic supporter of a new movie called Last Ounce of Courage. It is a film about faith, freedom, and taking a stand for American values. May I tell you more about why I recommend that you … see the movie?"
Recipients who indicated "yes" heard more about the movie. If the recipient did not answer the call, the message the Golans heard was terminated.
A federal court dismissed the suit, ruling that the Golans had not suffered an injury in fact because none of the messages they received contained an advertisement. In addition, the judge said the Golans were subject to a "unique defense" because they did not hear the entire script of the call and were therefore inadequate class representatives.
On appeal, the Eighth Circuit reversed on both issues.
While the panel agreed that the messages heard by the Golans were not advertisements prohibited by the TCPA because they did not mention property, goods, or services, as defined by the statute's implementing regulations, the messages did meet the definition of telemarketing.
The TCPA's implementing regulations for "telemarketing" at 47 C.F.R. section 64.1200(f)(12) define the term as the "initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person."
Examining the purpose of the defendants' call, the court said the content of the call was irrelevant. "Neither the TCPA nor its implementing regulations 'require an explicit mention of a good, product, or service' where the implication of an improper purpose is 'clear from the context,'" the panel wrote. "Congressional findings indicate that consumers consider 'prerecorded calls, regardless of the content [of the] message, to be a nuisance and an invasion of privacy.' Even when the intended content of a message is not conveyed, the intrusion into the home and the 'seizure' of the phone line is the same."
Content may be instructive, the court added, but it is not dispositive.
Although the campaign appeared to survey whether recipients had "traditional American values," the defendants were more concerned with getting viewers to see Last Ounce of Courage than gathering information about them. The script explained where recipients could watch the trailer and when the film would open.
"Here, the context of the calls indicates they were initiated for the purpose of promoting Last Ounce of Courage," the panel said, and qualified as "telemarketing" even though the messages never referenced the film.
The court also found that the Golans were adequate class representatives because their TCPA claims were typical of putative class members under Federal Rule of Civil Procedure 23(a).
"Because the purpose of the calls is the critical issue in this case, the Golans were not subject to a unique defense," the panel wrote. "Nor did they suffer a different injury than class members who heard the entire message. What matters for all class members, including the Golans, is that each call was initiated for the purpose of promoting Last Ounce of Courage."
The court reversed the dismissal and remanded the case for further proceedings, including consideration of whether some of the defendants—including Huckabee—could be held vicariously liable for the calls.
To read the opinion in Golan v. Veritas Entertainment, click here.
Why it matters: The Eighth Circuit panel took a broad reading of the TCPA's implementing regulations, particularly the definition of "telemarketing" found in 47 C.F.R. section 64.1200(f)(12). By focusing on the purpose of the call—and not the content—the court also left open the potential for liability, even where recipients like the plaintiffs only heard an introductory message and not the entire script.